SHORT NOTE
MADRAS HIGH COURT
P. Devdass, J.
Jemma Anne Vassou —Petitioner
versus
Aurean Agnes Marine Rozario
and Others —Respondents
A.S. (MD) No. 228 of 2009
Decided on 15.10.2014

IMPORTANT POINT
Once preliminary decree is passed the court is bound to give some workable solution at the time of disposing of application for final decree.

Headnote:Partition Act 1893—Section 3—Suit for partition—Preliminary decree passed—Application for final decree by the plaintiff—Commissioner appointed regarding possibilities of partition—According to the report of commissioner property was indivisible and he suggested selling of the property in auction—Objection of the defendant that the property was divisible—In the final decree the court directed the property to be sold for specific price as well as for distribution of the property—The trial court however failed to give workable solution rather directed sale of the property—The court must try to procure maximum sale price—Held further that once preliminary decree is passed, the court is bound to give workable solution—The court had fixed the evaluation in the year 2008, therefore revaluation and refixation of the price directed.

       Facts of the case:

        Where suit for partition filed by the plaintiffs in which preliminary decree passed according to which the first plaintiff was entitled to 4/12 share and plaintiffs no. 2, 3 and defendants no. 1 and 2, 2/12 share each. Application moved for passing of final decree and on that application local Commissioner appointed, according to which the property was indivisible and must be sold. The court directed the property to be sold for ‘ 20.00 Lac and sale proceeds to be distributed.

       Findings of the Court:

        When a sale is to take place at the direction of the Court, more particularly, when there is no unanimity among the shares, it should be under the direction and supervision of the Court itself. Everything shall be done by the Court itself. In a partition suit once preliminary decree is passed, the matter is not ended. Actually in a preliminary decree, the Court is just declaring the shares of the parties. Thereafter, the direction for final decree has to be carried out. The work has to be completed. Then only, the suit itself will come to an end. The Court has to give some workable solution. Otherwise, the litigation will go on without any end.

       Result: Appeal Allowed.